Several courts have held that the unit of prosecution in a § 924(c) case is the use of the firearm, rather than the underlying narcotics offense or crime of violence. Consequently, these cases hold that a single predicate offense, such as conspiracy to distribute narcotics, can support multiple § 924(c) counts. See United States v. Camps, 32 F.3d 102, 106-09 (4th Cir. 1994), cert. denied, 115 S. Ct. 1118 (1995); United States v. Edwards, 994 F.2d 417, 423-24 (8th Cir.), cert. denied, 114 S. Ct. 701 (1993). Other courts have held that the predicate offense, and not the firearm, is the unit of prosecution for a § 924(c) violation. See United States v. Taylor, 13 F.3d 986, 993 (6th Cir. 1994); United States v. Dahlman, 13 F.3d 1391, 1401 (10th Cir. 1993), cert. denied, 114 S. Ct. 1575 (1994). Under this analysis, each § 924(c) count must be based on a different predicate offense. Therefore, a single continuing conspiracy -- even one that embraces multiple discrete firearms transactions -- is insufficient to support multiple § 924(c) counts. See United States v. Anderson, 59 F.3d 1323 (D.C. Cir. 1995) (en banc).
To avoid exacerbating the conflict in the circuits on this issue, the Criminal Division urges prosecutors to base each § 924(c) count on a separate, distinct predicate narcotics offense or Federal crime of violence.
[cited in USAM 9-63.500]